M v Bruwer and Another (12624/18) [2018] ZAWCHC 188; [2019] 4 All SA 165 (WCC) (21 December 2018)

M v Bruwer and Another (12624/18) [2018] ZAWCHC 188; [2019] 4 All SA 165 (WCC) (21 December 2018)

The court held that the delegation of judicial authority to a facilitator, in this case Mrs Bruwer, to vary a High Court maintenance order is impermissible under South African law and the Constitution. Section 165 of the Constitution vests judicial authority exclusively in the courts, and neither the Children's Act nor any other legislation authorises such delegation. The parenting plan and consent paper, even when made orders of court, cannot override constitutional limitations. The process followed by Mrs Bruwer was found to be unfair, as Mrs M was not afforded a proper hearing, was denied access to relevant financial documents, and was not given an opportunity to make representations....

Citation
[2018] ZAWCHC 188
Parties
Applicant: Mrs M; Respondent: Esna Bruwer; Respondent: Mr M
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 December 2018
Case Number
12624/18
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The directive issued by the facilitator is reviewed and set aside. The facilitator is removed. Costs awarded against both respondents.
Judges
Vos
Legal Topics
Parenting Plan, Maintenance Variation, Delegation of Judicial Authority, Fair Hearing, Best Interests of Child
Family and Children Civil Procedure Parenting Plan Maintenance Variation Delegation of Judicial Authority Fair Hearing Best Interests of Child

Case Brief

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Parties

Mrs M

Applicant

Esna Bruwer

Respondent

Mr M

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether a facilitator appointed under a parenting plan may lawfully vary a High Court maintenance order.
  2. 2 Whether the delegation of judicial authority to a non-judicial person is permissible under South African law and the Constitution.
  3. 3 Whether the process followed by the facilitator afforded the parties a fair hearing.

Ratio Decidendi

The court held that the delegation of judicial authority to a facilitator, in this case Mrs Bruwer, to vary a High Court maintenance order is impermissible under South African law and the Constitution. Section 165 of the Constitution vests judicial authority exclusively in the courts, and neither the Children's Act nor any other legislation authorises such delegation. The parenting plan and consent paper, even when made orders of court, cannot override constitutional limitations. The process followed by Mrs Bruwer was found to be unfair, as Mrs M was not afforded a proper hearing, was denied access to relevant financial documents, and was not given an opportunity to make representations....

Court Disposition

Application granted. The directive issued by the facilitator is reviewed and set aside. The facilitator is removed. Costs awarded against both respondents.

Orders

  • The directive issued by Esna Bruwer on 29 March 2018 is reviewed and set aside.
  • Esna Bruwer is removed as the facilitator appointed pursuant to the parenting plan dated 25 March 2014, attached to the consent paper and made an order of court under case number 10037/2013.